marks and under thirty pounds, 3s. 4d.; if above thirty pounds and under forty pounds, 6s. 8d.; if above forty pounds, of what value soever they may be, 10s. and no more. And no mortuary shall throughout the kingdom be paid for the death of any feme-covert: nor for any child; nor for any one of full age, that is not a housekeeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day.

3. Heir-looms are such goods and personal chattels, as, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon original; in which language it signifies a limb or member; (a) so that an heir-loom is nothing else but a limb or member of the inheritance. They are generally such things as cannot be taken away without damaging or dismembering the freehold otherwise the general rule is, that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor. (b) But deer in a real authorized park, fishes in a pond, doves in a dove-house, &c. though in themselves personal chattels, yet they are so annexed to and so necessary to the well-being of the inhe- [428] ritance, that they shall accompany the land wherever it vests, by either descent or purchase. (c) For this reason also I apprehend it is, that the ancient jewels of the crown are held to be heir-looms; (d) for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise, and deeds, court-rolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heir-looms, and shall not go to the executor. (e) By special custom also, in some places, carriages, utensils, and other household implements, may be heirlooms; (f) but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, “quod ad aedibus non facile revellitur," (g) is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like. (h) A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable kind, calling them by a very particular appellation, praedia volantis, or volatile estates; such

a Spelm. Gloss. 277. e Bro. Abr. tit. chatteles, 18.

b Co. Litt. 588.
c Ibid. 8.
f Co. Litt. 18. 185.
h 12 Mod. 520.

d Ibid. 18.
g Spelm. Gloss. 277.

(4) See in general, Vin. Ab. Executors, Z. and title, Heir-loom, Toller's L. of Ex. B. 2. c. 4 & 5.; Cruise, tit. Heir-loom; H. Chitty on Descents, 256 to 261. As to waste or destruction of it, 2 Saund. 259. n. c. Family pictures may by will be rendered heir-looms. 1 Swanst. 537.

(5) Or if any chattel be given to a man and the heirs of his body, he takes the entire and absolute interest in it. There has been many fruitless attempts to make pictures, plate, books, and household furniture, descend to the heir with a family mansion. Where they are left to be enjoyed as heir-looms by the persons who shall respectively be in possession of a certain house, or to descend as heir-looms as far as courts of law and equity will admit, the absolute interest of them, subject to the life-interests of those who have life-estates in the real property, will vest in that person who is entitled to the first estate-tail or estate of inheritance, and upon his death that interest will pass to his personal representative. 1 Bro. 274. 3 Bro. 101. ante 398. note, but see 1 Swanst. 537.

Christian.

(6) In general the right to the custody of title-deeds descends or passes with the estate to the existing present owner, whether tenant for life or in fee, and he may retain or recover the deed from any other person. 4 Term. R, 229.

as beds, tables, and other heavy implements of furniture, which (as an author of their own observes) "dignitatem istam nacta sunt, ut villis, sylvis, "et aedibus, aliisque praediis, comparentur; quod solidiora mobilia ipsis "aedibus ex destinatione patrisfamilias cohaerere videantur, et pro parte "ipsarum aedium aestimentur.” (i)

7.

Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone in a church, or [429] the coat-armour of his ancestor there hung up, with the pennons and other ensigns of honour, suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir. (k) Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. (!) But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously violate and disturb their remains, when dead and buried. The parson, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it; and if any one in taking up a dead body steals the shroud or other apparel, it will be felony; (m) for the property thereof remains in the executor, or whoever was at the charge of the funeral. *

But to return to heir-looms; these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void, (n) even by a tenant in fee-simple. For though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since as the inheritance was his own, he might mangle or dismember it as he pleased; yet they being at his death instantly vested in the heir, the devise (which is subsequent and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended.

i Stockman's de jure devolutionis, c. 3. § 16.
18 Inst. 202. 12 Rep. 105.

m S Inst. 110.
n 1 Co. Litt. 185.

k 12 Rep. 105. Co. Litt. 18. 12 Rep. 113. 1 Hal. P. 0,515.

(7) The right to sit in a particular pew in a church arises either from prescription as appurte nant to a messuage, or from a faculty or grant from the ordinary, for he has the disposition of all pews which are not claimed by prescription. Gibs. Cod. 221. See generally as to the right to pews, 1 Phill. E. C. $16.

In an action upon the case at law for a disturbance of the enjoyment of a pew in the body of the church, if the plaintiff claims it by prescription, he must state it in the declaration as appurtenant to a messuage in the parish. 5 B. & A. 356. But a pew in the isle or chancel of the church may be prescribed for in respect of a house out of the parish. Forrest. Rep. 14. 5 B. & A. 361. S. P. This prescription inay be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. 1 T. R. 428. But where a pew was claimed as appurte nant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held this modern commencement defeated the prescriptive claim. 5 T. R. 296. In an action against the ordinary, the plaintiff must allege and prove repairs of the pew. 1 Wils. 326. But a possessory right to a pew is sufficient to sustain a suit in the ecclesiastical court against a mere disturber. I Phill. E. C. 316. See further the cases and precedents, 2 Chitty on Pl. 817. Com. Dig. Action on Case for Disturbance, A. 5. 2 Saund. Christian.

175. c. d.

(8) It has been determined, that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable offence as a misdemeanor; it being considered a practice contrary to common decency, and shocking to the general sentiments and feelings of mankind. 2 T. R. 733. 2 Leach, 560. S. C. Christian

The principle is well described by Cicero; de humatione unum tenendum est, contemnendan in nobis, non negligendam in nostris; ita tamen mortuorum corpora nihil sentire intelligamus. Quantum autem consuetudini famæque dandum sit, id curent vivi. Cic. 1. Tusc. n. 108-Mr. Christian's note.

CHAP. XXIX.

OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT.

In the present chapter we shall take into consideration three other species of title to goods and chattels.

1

V. The fifth method therefore of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies: and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate. (a) Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists. (b) And thus a lease for years, an obligation, [431] a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members to whom it was originally given.

But, with regard to sole corporations, a considerable distinction must be For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some ancient cathedral, who stands in the place of and represents, in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative. (c) Whereas in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and therefore, if a lease for years be made to the bishop of Oxford and his successors, in

(1) As to corporations taking by succession, see Toller's L. Ex. b. 2. c. 4. s. 3.; and as to churchwardens suing, see Bac. Ab. & Vin. Ab. tit. Churchwardens; and as to the overseer, &c. for the time being suing on a bond, see 54 Geo. III. c. 170. §. 8. and treasurer of friendly socie. ty, 33 Geo. III. c. 54.

VOL. I.

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328

such case his executors or administrators, and not his successors, shall have it. (d) For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his exeThe reason of this is obvious: for cutors and not in such his successors. besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs ; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such suc

cessor, the property thereof must be in abeyance from the death of [432] the present owner until the successor be appointed: and this is

contrary to the nature of a chattel interest, which can never be in abeyance or without an owner; (e) but a man's right therein, when once This is not the case in corporations aggresuspended, is gone for ever. gate, where the right is never in suspense; nor in the other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every But the general rule, interest is therefore said (in point of form) to vest. with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession.

One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors. (g) The other exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage wil Thus the chamberlain of London, who is a corporation strictly warrant. sole, may by the custom of London take bonds and recognizances to himse and his successors, for the benefit of the orphan's fund: (h) but it will follow from thence, that he has a capacity to take a lease for years to him self and his successors for the same purpose; for the custom extends no to that: nor that he may take a bond to himself and his successors, for an other purpose than the benefit of the orphan's fund; for that also s not warranted by the custom. Wherefore, upon the whole, we may clos

Yet to this rule there are two exceptions.

this head with laying down this general rule, that such right of suc [433] cession to chattels is universally inherent by the common law in

aggregate corporations, in the king, and in such single corporation as represent a number of persons; and may, by special custom, belong certain other sole corporations for some particular purposes; although g nerally, in sole corporations, no such right can exist.

IV. A sixth method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wi are by act of law vested in the husband with the same degree of proper and with the same powers, as the wife, when sole, had over them. This depends entirely on the notion of an unity of person between

f Co. Litt. 46.

b 4 Rep. 65. Cro. Eliz. 682.

husband and wife: it being held that they are one person in law, (i) so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife, before marriage, is by marriage absolutely vested in the husband. In a real estate, he only gains a title to the rents and profits during coverture: for that, depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him; unless, by the birth of a child, he becomes tenant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them: for, unless he reduces them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined. 2

There is therefore a very considerable difference in the acquisition of this species of property by the husband, according to the subject-matter; viz. whether it be a chattel real or a chattel personal; and, of chattels personal, whether it be in possession, or in action only. A chat- [434] tel real3 vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture: (k) if he be outlawed or attainted, it shall be forfeited to the king: (1) it is liable to execution for his debts: (m) and, if he survives his wife, it is to all intents and purposes his own. (n) Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dis

i See Book. I. c. 15.

k Co. Litt. 46. 1 Plowd. 263.

m Co. Litt. 351.

n Ibid. 300.

(2) If he assign her choses in action for a valuable consideration in her lifetime, and she survive, she is bound only to the amount of the consideration, and the residue survives to her. 1 Atk. 207. Cox's P. Wms. 380. But if the husband before marriage makes a settlement upon the wife in consideration of the wife's fortune, the representative of the husband will be entitled to all her choses in action, (3 P. Wms. 199.): but if it is in consideration of part of the estate only, the residue not reduced into possession will survive to the wife; and where there is a settlement made equivalent to the wife's fortune, though no mention be made of her personal estate, the husband's representative will be entitled to the whole. See Mr. Butler's note to Co. Litt. 352. where these distinctions are clearly and fully collected. If the husband cannot recover the things in action of his wife but by the assistance of a court of equity, the court, upon the principle that he who seeks equity must do equity, will not assist him in recovering the property, unless he either has made a previous provision for her, or agrees to do it out of the estate prayed for: or unless the wife appears personally in court, and consents to the property being given to him. 2 Ves. 669. But the court will not direct the fortune in all cases to be paid to the busband, though the wife appears to consent, where no previous provision whatever is made upon her. 2 Ves. 579. Lord Thurlow has declared that he did not find it any where decided, that if the husband makes an actual assignment by contract for a valuable consideration, the assignee should be bound to make any provision for the wife out of the property assigned; but that a court of equity has much greater consideration for the assignment actually made by contract, than for an assignment by mere operation of law; for, as to the latter, his lordship declared it to be his opinion, that when the equitable interest of the wife was transferred to the creditor of the husband by mere operation of law (as in the case of an assignee under a commission of bankrupt), he stood exactly in the place of the husband, and was subject precisely to the same equity in respect of the wife. 1 Cox's P. Wms. 459. 3 Ves. Jun. 421. And it is determined, the wife shall have the same relief, under a general assignment by the husband of his estate for the benefit of his creditors. 4 Bro. 139. An assignee of a bankrupt in such cases generally allows the wife one half. 3 Ves. Jun. 620. Ib. 166.

The courts of equity at present are not inclined to make any distinction between an assignee by contract and an assignee by operation of law, but I should think they would compel the former to make the same provision for the wife as the latter. 4 Bro. 326. 2 Ves. Jun. 680.

But if the wife's fortune is paid to the husband, or he can receive it without applying to a court of equity, then it can give no relief to the wife. 2 Atk. 420. But Co. Litt. 351. 1 Fonb. Tr. Eq. 304.-Mr. Christian's note.

(3) See in general, Toller's L. Ex. b. 2. ch. 5. And as to the interest of the husband in the wife's estate if he survive her, see Butler's note on Coke Lit. 351.